Hodges v. Standard Wheel Co.

• Decision Date: 30 December 1898
• Parties: HODGES v. STANDARD WHEEL CO.
• Court: Indiana Supreme Court

152 Ind. 680

52 N.E. 391

HODGES

v.STANDARD WHEEL CO.¹

Supreme Court of Indiana.

Dec. 30, 1898.

Appeal from circuit court, Hancock county; C. G. Offutt, Judge.

Action for damages for personal injuries by John T. Hodges against Standard Wheel Company. Defendant had judgment, and plaintiff appeals. Affirmed.

R. A. Black, Wymond J. Beckett, and D. W. Howe, for appellant. Miller & Elam, for appellee.

JORDAN, J.

Appellant commenced this action in the Marion superior court to recover damages, and, on his motion, the venue was changed to the Hancock circuit court, wherein a trial before a jury resulted in a general verdict awarding him $5,000, and with this verdict the jury returned answers to certain interrogatories. The court, on motion of appellee, rendered judgment in its favor upon the answers returned to the interrogatories, notwithstanding the general verdict. From this judgment appellant appeals, and the only question presented for our decision is, do the facts found by the jury in answer to the interrogatories entitle appellee to the judgment rendered in its favor by the lower court, notwithstanding the general verdict?

The action is for personal injuries sustained by appellant while in the employ of appellee, and the legal questions involved are those pertaining to master and servant. The complaint is in two paragraphs, and the following may be said to be, in substance, the facts therein set forth: Appellee is a corporation engaged in the city of Indianapolis in manufacturing buggy and light wagon wheels, and, among others, employed appellant to work in its factory in the labor of assorting wheel rims and in doing other work. It was his duty, under his employment, to take these rims, which consisted of strips of green hickory seven feet long and two inches square, and grade and stack them on their ends, in stalls prepared for that purpose, against the side of the shed or building belonging to the factory. Over the department in which he worked there was a foreman employed by appellee, whom the latter had invested with the authority to direct the workmen therein, where each should work, and what work each should perform, and this foreman had authority to employ, discharge, and keep the time of the employés under him. In one of said stalls there had been piled on their ends some heavy pieces of timber about 4 or 5 feet long, 14 inches wide, and 4 inches thick. On December 24, 1895, it became necessary to move these timbers in order to secure more room in which to pile the hickory rims, and appellant was directed by the foreman to remove these pieces of timber; and, in order to do so, it was necessary for him to go, for a distance of 6 or 8 feet, between two columns of the wheel rims which had been piled in the shed, as heretofore stated. These rims, on the east side of the shed or building, extended out beyond the arms or strips which had been placed there to support them, and aside from these arms there was nothing else to support the rims or prevent them from falling; which fact was known to said foreman, but not known to appellant. While the latter was engaged in removing the timbers in question, the foreman stood at the opening of the stall, and supported the projecting rims until appellant had removed all of the timber except one or two pieces, and it is then alleged that while the latter was bending over, with his back towards the pile of rims, the foreman negligently released and abandoned his said support, and by reason thereof, and without any fault or negligence on the part of the appellant, a large number of the rims fell on appellant's back and injured him as alleged. The second paragraph is substantially the same as the first, except there is an attempt made to base it on the second subdivision of section 1 of an act of the legislature regulating the liability of railroads and other corporations, approved March 4, 1893 (Acts 1893, p. 294). Neither of these paragraphs was demurred to in the lower court, and, while we do not and need not pass upon their sufficiency to constitute a cause of action, that, at least, may be said to be questionable.

Both paragraphs of the complaint apparently proceed upon the theory that the accident in question was due to the alleged negligence of appellee's foreman in releasing his hold upon the wheel rims, by reason of which they fell upon appellant. The facts material to the question herein involved, as disclosed by the answers returned by the jury to the interrogatories, in substance are as follows: Appellee is a corporation engaged in the business of manufacturing parts of buggy and wagon wheels. Appellant had been in its employ as a common laborer, doing various kinds of work, for about seven years prior to the accident. About 18 months before he was injured he was transferred to the saw room of appellee's factory, and there was engaged in assorting and grading strips for wheel rims, and this, in the main, was the only kind of work which he performed; but, under his employment, he was liable to be assigned to any common labor necessary to be done about the factory. The wheel rims were sawed from green hickory lumber, and were about 1 1/2 by 1 3/8 inches square, and from 6 to 7 feet long; and these rims were ricked in stalls, being kept separate by projecting arms and pieces of timber dividing the space along the building into stalls which were about 4 or 5 feet wide. The pieces of lumber dividing the stalls were 6 feet above the ground, and projected from the wall about 4 feet. The wheel rims were ordinarily removed from the stalls, where the graders placed them, within a few days. Some time before the accident several pieces of pine lumber, about 5 by 6 inches in size and 6 feet long, were placed against the rims which had been previously piled, and, during the day of the accident, these pieces of pine lumber were covered over with other rims. One Bosler was the general manager of appellee's factory, and was usually present, superintending the work. Under Bosler there were some eight foremen in charge of different parts of the work being done in the factory. A Mr. Saulsbury was one of these foremen, and he was in charge of the saw room where appellant worked, and superintended the work in the saw room and in the yard adjoining thereto. Saulsbury had authority to employ and discharge employés under him, and he was usually in the saw room and about the premises in the yard near thereto several times during a day. Generally, about seven men were employed in the saw room; two or three operated the saws, one was engaged in bringing material from the yards to the saws, and two or three were engaged in assorting and grading the rims after they were sawed. One of the seven men working along with appellant in the saw room was named Huey, and he worked as a grader and assorter of the strips and rims, and, in addition to this work, it was also his duty to file the saws, and he had been so engaged about two months prior to the accident. Huey, in like manner as his associates, received instructions in regard to his work from Saulsbury, the foreman, and he had no authority to either employ or discharge any of the men working with him, and had no authority to permanently transfer employés from one kind of work to another. In the absence, temporarily, of the foreman from the saw room, Huey, under instructions given him by the said foreman, was authorized to give directions in regard to bringing material from the saw room, and to direct the men employed with him in the room in respect to the details of the work being done during the time that Saulsbury, the foreman, was temporarily absent in other parts of the premises, and the foreman had directed the men to receive instructions from Huey in his absence; but no one having any connection with appellee, except Saulsbury, had given Huey any authority. At the time appellant was transferred to work in the saw room, Saulsbury informed him that he would be under the supervision of Huey, and that he should obey the instructions of the latter in matters pertaining to his work in the saw room. On the morning of the accident, Huey told appellant that it would be necessary to remove the pieces of pine lumber in question from where they had been previously placed, as one of the carpenters required their use; and he then directed appellant, who at the time was engaged in assorting strips in the saw room, to go to the north side of said room, and remove the pieces of pine lumber; and, in giving this direction or order, Huey was acting under the authority given him, as before stated, by Saulsbury, the foreman, but the latter was not present when this direction was given by Huey to appellant. The work of moving this pine lumber was not a proper part of the work of the graders or sorters, and Huey ought to have called upon Saulsbury, the foreman, to send other men to do such work. Appellant at first refused to do this work, but Huey threatened to report him to the office unless he did. Huey and appellant then went to work together to remove the pine pieces. Huey partly...